On 2 October, changes to court rules granted a new right of access to court records allowing publication of the finer details of disputes. Until now, access has only been granted to copies of served claim forms in return for a fee (often containing little information about the claim) and judgments made in public.

A formal court application showing cause has been required to get copies of other documents, such as statements of case – see Cleveland Bridge UK v Multiplex Constructions [2005] below. The courts have also generally allowed nonparties access to documents that have been referred to at trial, irrespective of whether or not the trial was complete, or at an interim hearing.

Media interest

It is a familiar stereotype that some journalists have spent hours scrutinising court records trying to identify newsworthy cases. However, the public and the media now have access to any statement of case filed at court, including particulars of claim and the defence which contain the details of the dispute – although documents annexed to statements of case will not be made accessible.

While the court will still have the ability to restrict the publication of certain documents on limited grounds, such as national security, in the absence of strong and compelling reasons meaningful access to documents held on the court file will be given. Perhaps mercifully, these changes will not apply to divorce cases or other family proceedings.

Access by non-parties to statements of case will be allowed from a fairly early stage in the proceedings and even before the defendant has filed his defence, which may prejudice his position if the contents of a statement of claim are made public and he has not filed a document setting out his position.

Public access

The changes are in line with the policy of encouraging greater transparency in the court system. Since the introduction of the Civil Procedure Rules in 1999, far fewer hearings are held in private and the courts have demonstrated a will-ingness to make details of proceedings available to the public.

In Re Guardian Newspapers [2004], The Guardian was given access to witness statements even after the case in question had been settled, on the grounds that disclosure of the witness statements would not result in damage to the defendant.

A similar view was taken in respect of an application by the Australian Broadcasting Corporation for permission to access the statements of case in Cleveland Bridge UK v Multiplex Constructions [2005] – a case related to the new Wembley Stadium.

Although Multiplex argued that the information contained in the documents might, if disclosed, trigger reporting obligations under the Australian Stock Exchange rules and that selective disclo-sure of documents in what was a complex case would give Multiplex unfair coverage, the court was not persuaded to restrict access to the documents sought.

The media will remain subject to the 'sub judice' rule, which will limit their ability to comment and disclose information relating to ongoing judicial proceedings.

Retrospective rights

It should be noted that the change operates retrospectively allowing access to statements of case in past and concluded cases to be provided on request.

Statements of case are typically kept for five years after the conclusion of civil court cases, so documents may be available from cases concluded from October 2001. Statements of case filed on the basis that they would remain private unless a trial took place may now not be.

This has caused disquiet among lawyers and their clients. It was anticipated that the courts would issue guidance to the effect that the new changes would not apply retrospectively to the county courts and that non-parties would not have automatic access to statements of case filed before 2 October, because in the High Court such applications would be referred to the Master for determination. The court service has advised, however, that this will not be the case.

Concerned parties therefore need to consider whether or not to make an application to prevent disclosure of their statements of case, as there is no guarantee that a party will have the opportunity to contest an application for disclosure of particular court documents. It may be easier to persuade the court that a non-disclosure order should be granted if both parties cooperate in making the application; although this is perhaps easier said than done.

The changes will be welcomed by the media and the public, but not by everyone. Parties often prefer to conduct court litigation with some privacy and it is clear that litigants and their lawyers will have to consider how their case is set out, with sensitive information listed in separate, private schedules.

The new rules may well lead to an increase in arbitration and pre-action mediation (both private and confidential resolution processes) and doubtless future plans will include live TV coverage of the courtroom and audiences deciding the result by text (with funds raised being for the benefit of the Department for Constitutional Affairs).

Nigel Kissack is head of dispute resolution & litigation at Pinsent Masons.